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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-32432 September 11, 1970

MANUEL B. IMBONG, petitioner,


vs.
JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO and CESAR
MILAFLOR, as members thereof, respondents.

G.R. No. L-32443 September 11, 1970

IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT


REGARDING THE VALIDITY OF R.A. No. 6132, OTHERWISE KNOWN AS
THE CONSTITUTIONAL CONVENTION ACT OF 1970. RAUL M. GONZALES,
petitioner,
vs.
COMELEC, respondent.

Manuel B. Imbong in his own behalf.

Raul M. Gonzales in his own behalf.

Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General
Ricardo L. Pronove, Jr., and Solicitors Raul I. Goco, Bernardo P. Pardo, Rosalio
A. de Leon, Vicente A. Torres and Guillermo C. Nakar for respondents.

Lorenzo Tañada, Arturo Tolentino, Jovito Salonga and Emmanuel Pelaez as


amici curiae.

MAKASIAR, J.:

These two separate but related petitions for declaratory relief were filed pursuant
to Sec. 19 of R.A. No. 6132 by petitioners Manuel B. Imbong and Raul M.
Gonzales, both members of the Bar, taxpayers and interested in running as
candidates for delegates to the Constitutional Convention. Both impugn the
constitutionality of R.A. No. 6132, claiming during the oral argument that it
prejudices their rights as such candidates. After the Solicitor General had filed
answers in behalf the respondents, hearings were held at which the petitioners
and the amici curiae, namely Senator Lorenzo Tañada, Senator Arturo Tolentino,
Senator Jovito Salonga, and Senator Emmanuel Pelaez argued orally.
It will be recalled that on March 16, 1967, Congress, acting as a Constituent
Assembly pursuant to Art. XV of the Constitution, passed Resolution No. 2 which
among others called for a Constitutional Convention to propose constitutional
amendments to be composed of two delegates from each representative district
who shall have the same qualifications as those of Congressmen, to be elected
on the second Tuesday of November, 1970 in accordance with the Revised
Election Code.

After the adoption of said Res. No. 2 in 1967 but before the November elections
of that year, Congress, acting as a legislative body, enacted Republic Act No.
4914 implementing the aforesaid Resolution No. 2 and practically restating in toto
the provisions of said Resolution No. 2.

On June 17, 1969, Congress, also acting as a Constituent Assembly, passed


Resolution No. 4 amending the aforesaid Resolution No. 2 of March 16, 1967 by
providing that the convention "shall be composed of 320 delegates apportioned
among the existing representative districts according to the number of their
respective inhabitants: Provided, that a representative district shall be entitled to
at least two delegates, who shall have the same qualifications as those required
of members of the House of Representatives," 1 "and that any other details
relating to the specific apportionment of delegates, election of delegates to, and
the holding of, the Constitutional Convention shall be embodied in an
implementing legislation: Provided, that it shall not be inconsistent with the
provisions of this Resolution." 2

On August 24, 1970, Congress, acting as a legislative body, enacted Republic


Act No. 6132, implementing Resolutions Nos. 2 and 4, and expressly repealing
R.A. No.
4914. 3

Petitioner Raul M. Gonzales assails the validity of the entire law as well as the
particular provisions embodied in Sections 2, 4, 5, and par. 1 of 8(a). Petitioner
Manuel B. Imbong impugns the constitutionality of only par. I of Sec. 8(a) of said
R.A. No. 6132 practically on the same grounds advanced by petitioner Gonzales.

The validity of Sec. 4 of R.A. No. 6132, which considers, all public officers and
employees, whether elective or appointive, including members of the Armed
Forces of the Philippines, as well as officers and employees of corporations or
enterprises of the government, as resigned from the date of the filing of their
certificates of candidacy, was recently sustained by this Court, on the grounds,
inter alia, that the same is merely an application of and in consonance with the
prohibition in Sec. 2 of Art. XII of the Constitution and that it does not constitute a
denial of due process or of the equal protection of the law. Likewise, the
constitutionality of paragraph 2 of Sec. 8(a) of R.A. No. 6132 was upheld. 4
II

Without first considering the validity of its specific provisions, we sustain the
constitutionality of the enactment of R.A. No. 6132 by Congress acting as a
legislative body in the exercise of its broad law-making authority, and not as a
Constituent Assembly, because �

1. Congress, when acting as a Constituent Assembly pursuant to Art. XV of the


Constitution, has full and plenary authority to propose Constitutional
amendments or to call a convention for the purpose, by a three-fourths vote of
each House in joint session assembled but voting separately. Resolutions Nos. 2
and 4 calling for a constitutional convention were passed by the required three-
fourths vote.

2. The grant to Congress as a Constituent Assembly of such plenary authority to


call a constitutional convention includes, by virtue of the doctrine of necessary
implication, all other powers essential to the effective exercise of the principal
power granted, such as the power to fix the qualifications, number,
apportionment, and compensation of the delegates as well as appropriation of
funds to meet the expenses for the election of delegates and for the operation of
the Constitutional Convention itself, as well as all other implementing details
indispensable to a fruitful convention. Resolutions Nos. 2 and 4 already embody
the above-mentioned details, except the appropriation of funds.

3. While the authority to call a constitutional convention is vested by the present


Constitution solely and exclusively in Congress acting as a Constituent
Assembly, the power to enact the implementing details, which are now contained
in Resolutions Nos. 2 and 4 as well as in R.A. No. 6132, does not exclusively
pertain to Congress acting as a Constituent Assembly. Such implementing
details are matters within the competence of Congress in the exercise of its
comprehensive legislative power, which power encompasses all matters not
expressly or by necessary implication withdrawn or removed by the Constitution
from the ambit of legislative action. And as lone as such statutory details do not
clash with any specific provision of the constitution, they are valid.

4. Consequently, when Congress, acting as a Constituent Assembly, omits to


provide for such implementing details after calling a constitutional convention,
Congress, acting as a legislative body, can enact the necessary implementing
legislation to fill in the gaps, which authority is expressly recognized in Sec. 8 of
Res No. 2 as amended by Res. No. 4.

5. The fact that a bill providing for such implementing details may be vetoed by
the President is no argument against conceding such power in Congress as a
legislative body nor present any difficulty; for it is not irremediable as Congress
can override the Presidential veto or Congress can reconvene as a Constituent
Assembly and adopt a resolution prescribing the required implementing details.

III

Petitioner Raul M. Gonzales asserts that Sec. 2 on the apportionment of


delegates is not in accordance with proportional representation and therefore
violates the Constitution and the intent of the law itself, without pinpointing any
specific provision of the Constitution with which it collides.

Unlike in the apportionment of representative districts, the Constitution does not


expressly or impliedly require such apportionment of delegates to the convention
on the basis of population in each congressional district. Congress, sitting as a
Constituent Assembly, may constitutionally allocate one delegate for, each
congressional district or for each province, for reasons of economy and to avoid
having an unwieldy convention. If the framers of the present Constitution wanted
the apportionment of delegates to the convention to be based on the number of
inhabitants in each representative district, they would have done so in so many
words as they did in relation to the apportionment of the representative districts. 5

The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot possibly
conflict with its own intent expressed therein; for it merely obeyed and
implemented the intent of Congress acting as a Constituent Assembly expressed
in Sec. 1 of Res. No. 4, which provides that the 320 delegates should be
apportioned among the existing representative districts according to the number
of their respective inhabitants, but fixing a minimum of at least two delegates for
a representative district. The presumption is that the factual predicate, the latest
available official population census, for such apportionment was presented to
Congress, which, accordingly employed a formula for the necessary computation
to effect the desired proportional representation.

The records of the proceedings on Senate Bill No. 77 sponsored by Senator


Pelaez which is now R.A. No. 6132, submitted to this Tribunal by the amici
curiae, show that it based its apportionment of the delegates on the 1970 official
preliminary population census taken by the Bureau of Census and Statistics from
May 6 to June 30, 1976; and that Congress adopted the formula to effect a
reasonable apportionment of delegates. The Director of the Bureau of Census
and Statistics himself, in a letter to Senator Pelaez dated July 30, 1970, stated
that "on the basis of the preliminary count of the population, we have computed
the distribution of delegates to the Constitutional Convention based on Senate
Bill 77 (p. 2 lines 5 to 32 and p. 3 line 12) which is a fair and an equitable method
of distributing the delegates pursuant to the provisions of the joint Resolution of
both Houses No. 2, as amended. Upon your request at the session of the
Senate-House Conference Committee meeting last night, we are submitting
herewith the results of the computation on the basis of the above-stated method."

Even if such latest census were a preliminary census, the same could still be a
valid basis for such apportionment. 6 The fact that the lone and small
congressional district of Batanes, may be over-represented, because it is allotted
two delegates by R.A. No. 6132 despite the fact that it has a population very
much less than several other congressional districts, each of which is also
allotted only two delegates, and therefore under-represented, vis-a-vis Batanes
alone, does not vitiate the apportionment as not effecting proportional
Frepresentation. Absolute proportional apportionment is not required and is not
possible when based on the number of inhabitants, for the population census
cannot be accurate nor complete, dependent as it is on the diligence of the
census takers, aggravated by the constant movement of population, as well as
daily death and birth. It is enough that the basis employed is reasonable and the
resulting apportionment is substantially proportional. Resolution No. 4 fixed a
minimum of two delegates for a congressional district.

While there may be other formulas for a reasonable apportionment considering


the evidence submitted to Congress by the Bureau of Census and Statistics, we
are not prepared to rule that the computation formula adopted by, Congress for
proportional representation as, directed in Res. No. 4 is unreasonable and that
the apportionment provided in R.A. No. 6132 does not constitute a substantially
proportional representation.

In the Macias case, relied on by petitioner Gonzales, the apportionment law,


which was nullified as unconstitutional, granted more representatives to a
province with less population than the provinces with more inhabitants. Such is
not the case here, where under Sec. 2 of R.A. No. 6132 Batanes is allotted only
two delegates, which number is equal to the number of delegates accorded other
provinces with more population. The present petitions therefore do not present
facts which fit the mould of the doctrine in the case of Macias et al. vs. Comelec,
supra.

The impossibility of absolute proportional representation is recognized by the


Constitution itself when it directs that the apportionment of congressional districts
among the various provinces shall be "as nearly as may be according to their
respective inhabitants, but each province shall have at least one member" (Sec.
5, Art. VI, Phil. Const., emphasis supplied). The employment of the phrase "as
nearly as may be according to their respective inhabitants" emphasizes the fact
that the human mind can only approximate a reasonable apportionment but
cannot effect an absolutely proportional representation with mathematical
precision or exactitude.

IV

Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue deprivation of


liberty without due process of law and denies the equal protection of the laws.
Said Sec. 5 disqualifies any elected delegate from running "for any public office
in any election" or from assuming "any appointive office or position in any branch
of the government government until after the final adjournment of the
Constitutional Convention."

That the citizen does not have any inherent nor natural right to a public office, is
axiomatic under our constitutional system. The State through its Constitution or
legislative body, can create an office and define the qualifications and
disqualifications therefor as well as impose inhibitions on a public officer.
Consequently, only those with qualifications and who do not fall under any
constitutional or statutory inhibition can be validly elected or appointed to a public
office. The obvious reason for the questioned inhibition, is to immunize the
delegates from the perverting influence of self-interest, party interest or vested
interest and to insure that he dedicates all his time to performing solely in the
interest of the nation his high and well nigh sacred function of formulating the
supreme law of the land, which may endure for generations and which cannot
easily be changed like an ordinary statute. With the disqualification embodied in
Sec. 5, the delegate will not utilize his position as a bargaining leverage for
concessions in the form of an elective or appointive office as long as the
convention has not finally adjourned. The appointing authority may, by his
appointing power, entice votes for his own proposals. Not love for self, but love
for country must always motivate his actuations as delegate; otherwise the
several provisions of the new Constitution may only satisfy individual or special
interests, subversive of the welfare of the general citizenry. It should be stressed
that the disqualification is not permanent but only temporary only to continue until
the final adjournment of the convention which may not extend beyond one year.
The convention that framed the present Constitution finished its task in
approximately seven months � from July 30, 1934 to February 8, 1935.

As admitted by petitioner Gonzales, this inhibition finds analogy in the


constitutional provision prohibiting a member of Congress, during the time for
which he was elected, from being appointed to any civil office which may have
been created or the emolument whereof shall have been increased while he was
a member of the Congress. (Sec. 16, Art. VI, Phil. Constitution.)

As observed by the Solicitor General in his Answer, the overriding objective of


the challenged disqualification, temporary in nature, is to compel the elected
delegates to serve in full their term as such and to devote all their time to the
convention, pursuant to their representation and commitment to the people;
otherwise, his seat in the convention will be vacant and his constituents will be
deprived of a voice in the convention. The inhibition is likewise "designed to
prevent popular political figures from controlling elections or positions. Also it is a
brake on the appointing power, to curtail the latter's desire to 'raid' the convention
of "talents" or attempt to control the convention." (p. 10, Answer in L-32443.)

Thus the challenged disqualification prescribed in Sec. 5 of R.A. No. 6132 is a


valid limitation on the right to public office pursuant to state police power as it is
reasonable and not arbitrary.

The discrimination under Sec. 5 against delegates to the Constitutional


Convention is likewise constitutional; for it is based on a substantial distinction
which makes for real differences, is germane to the purposes of the law, and
applies to all members of the same class. 7 The function of a delegate is more far-
reaching and its effect more enduring than that of any ordinary legislator or any
other public officer. A delegate shapes the fundamental law of the land which
delineates the essential nature of the government, its basic organization and
powers, defines the liberties of the people, and controls all other laws. Unlike
ordinary statutes, constitutional amendments cannot be changed in one or two
years. No other public officer possesses such a power, not even the members of
Congress unless they themselves, propose constitutional amendments when
acting as a Constituent Assembly pursuant to Art. XV of the Constitution. The
classification, therefore, is neither whimsical nor repugnant to the sense of justice
of the community.

As heretofore intimated, the inhibition is relevant to the object of the law, which is
to insure that the proposed amendments are meaningful to the masses of our
people and not designed for the enhancement of selfishness, greed, corruption,
or injustice.

Lastly, the disqualification applies to all the delegates to the convention who will
be elected on the second Tuesday of November, 1970.

Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners as


violative of the constitutional guarantees of due process, equal protection of the
laws, freedom of expressions, freedom of assembly and freedom of association.

This Court ruled last year that the guarantees of due process, equal protection of
the laws, peaceful assembly, free expression, and the right of association are
neither absolute nor illimitable rights; they are always subject to the pervasive
and dormant police power of the State and may be lawfully abridged to serve
appropriate and important public interests. 8

In said Gonzalez vs. Comelec case the Court applied the clear and present
danger test to determine whether a statute which trenches upon the aforesaid
Constitutional guarantees, is a legitimate exercise of police power. 9

Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:

1. any candidate for delegate to the convention

(a) from representing, or

(b) allowing himself to be represented as being a candidate of


any political party or any other organization; and

2. any political party, political group, political committee, civic, religious,


professional or other organizations or organized group of whatever nature from

(a) intervening in the nomination of any such candidate or in the


filing of his certificate, or
(b) from giving aid or support directly or indirectly, material or
otherwise, favorable to or against his campaign for election.

The ban against all political parties or organized groups of whatever nature
contained in par. 1 of Sec. 8(a), is confined to party or organization support or
assistance, whether material, moral, emotional or otherwise. The very Sec. 8(a)
in its provisos permits the candidate to utilize in his campaign the help of the
members of his family within the fourth civil degree of consanguinity or affinity,
and a campaign staff composed of not more than one for every ten precincts in
his district. It allows the full exercise of his freedom of expression and his right to
peaceful assembly, because he cannot be denied any permit to hold a public
meeting on the pretext that the provision of said section may or will be violated.
The right of a member of any political party or association to support him or
oppose his opponent is preserved as long as such member acts individually. The
very party or organization to which he may belong or which may be in sympathy
with his cause or program of reforms, is guaranteed the right to disseminate
information about, or to arouse public interest in, or to advocate for constitutional
reforms, programs, policies or constitutional proposals for amendments.

It is therefore patent that the restriction contained in Sec. 8(a) is so narrow that
the basic constitutional rights themselves remain substantially intact and
inviolate. And it is therefore a valid infringement of the aforesaid constitutional
guarantees invoked by petitioners.

In the aforesaid case of Gonzales vs. Comelec, supra, this Court unanimously
sustained the validity of the limitation on the period for nomination of candidates
in Sec. 50-A of R.A. No. 4880, thus:

The prohibition of too early nomination of candidates presents a question that is


not too formidable in character. According to the act: "It shall be unlawful for any
political party, political committee, or political group to nominate candidates for
any elective public office voted for at large earlier than one hundred and fifty days
immediately preceding an election, and for any other elective public office earlier
than ninety days immediately preceding an election.

The right of association is affected. Political parties have less freedom as to the
time during which they may nominate candidates; the curtailment is not such,
however, as to render meaningless such a basic right. Their scope of legitimate
activities, save this one, is not unduly narrowed. Neither is there infringement of
their freedom to assemble. They can do so, but not for such a purpose. We
sustain its validity. We do so unanimously. 10

In said Gonzales vs. Comelec case, this Court likewise held that the period for
the conduct of an election campaign or partisan political activity may be limited
without offending the aforementioned constitutional guarantees as the same is
designed also to prevent a "clear and present danger of a substantive evil, the
debasement of the electoral process." 11
Even if the partisan activity consists of (a) forming organizations, associations,
clubs, committees or other group of persons for the purpose of soliciting votes
and/or undertaking any campaign or propaganda for or against a party or
candidate; (b) holding political conventions, caucuses, conferences, meetings,
rallies, parades or other similar assemblies for the purpose of soliciting votes
and/or undertaking any campaign or propaganda for or against any candidate or
party; and (c) giving, soliciting, or receiving contributions for election campaign
either directly or indirectly, (Sec. 50-B, pars. (a), (b), and (c), R.A. 4880), the
abridgment was still affirmed as constitutional by six members of this Court,
which could not "ignore ... the legislative declaration that its enactment was in
response to a serious substantive evil affecting the electoral process, not merely
in danger of happening, but actually in existence, and likely to continue unless
curbed or remedied. To assert otherwise would be to close one's eyes to the
reality of the situation." 12;

Likewise, because four members dissented, this Court in said case of Gonzales
vs. Comelec, supra, failed to muster the required eight votes to declare as
unconstitutional the limitation on the period for (a) making speeches,
announcements or commentaries or holding interviews for or against the election
of any party or candidate for public office; (b) publishing or distributing campaign
literature or materials; and (e) directly or indirectly soliciting votes and/or
undertaking any campaign or propaganda for or against any candidate or party
specified in Sec. 50-B, pars. (c), (d) & (e) of R.A. 4880. 13

The debasement of the electoral process as a substantive evil exists today and is
one of the major compelling interests that moved Congress into prescribing the
total ban contained in par. 1 of Sec. 8(a) of R.A. No. 6132, to justify such ban. In
the said Gonzales vs. Comelec case, this Court gave "due recognition to the
legislative concern to cleanse, and if possible, render spotless, the electoral
process," 14 impressed as it was by the explanation made by the author of R.A.
No. 4880, Sen. Lorenzo Tañada, who appeared as amicus curiae, "that such
provisions were deemed by the legislative body to be part and parcel of the
necessary and appropriate response not merely to a clear and present danger
but to the actual existence of a grave and substantive evil of excessive
partisanship, dishonesty and corruption as well as violence that of late has
marred election campaigns and partisan political activities in this country. He did
invite our attention likewise to the well-settled doctrine that in the choice of
remedies for an admitted malady requiring governmental action, on the
legislature primarily rests the responsibility. Nor should the cure prescribed by it,
unless clearly repugnant to fundamental rights, be ignored or disregarded." 15

But aside from the clear and imminent danger of the debasement of the electoral
process, as conceded by Senator Pelaez, the basic motivation, according to
Senate Majority Floor Leader Senator Arturo Tolentino, the sponsor of the Puyat-
Tolentino amendment embodied in par. 1 of Sec. 8(a) of R.A. No. 6132, is to
assure the candidates equal protection of the laws by according them equality of
chances. 16 The primary purpose of the prohibition then is also to avert the clear
and present danger of another substantive evil, the denial of the equal protection
of the laws. The candidates must depend on their individual merits and not on the
support of political parties or organizations. Senator Tolentino and Senator
Salonga emphasized that under this provision, the poor candidate has an even
chance as against the rich candidate. We are not prepared to disagree with
them, because such a conclusion, predicated as it is on empirical logic, finds
support in our recent political history and experience. Both Senators stressed
that the independent candidate who wins in the election against a candidate of
the major political parties, is a rare phenomenon in this country and the victory of
an independent candidate mainly rests on his ability to match the resources,
financial and otherwise, of the political parties or organizations supporting his
opponent. This position is further strengthened by the principle that the
guarantee of social justice under Sec. V, Art. II of the Constitution, includes the
guarantee of equal opportunity, equality of political rights, and equality before the
law enunciated by Mr. Justice Tuazon in the case Guido vs. Rural Progress
Administration. 17

While it may be true that a party's support of a candidate is not wrong per se it is
equally true that Congress in the exercise of its broad law-making authority can
declare certain acts as mala prohibita when justified by the exigencies of the
times. One such act is the party or organization support proscribed in Sec.
8(a),which ban is a valid limitation on the freedom of association as well as
expression, for the reasons aforestated.

Senator Tolentino emphasized that "equality of chances may be better attained


by banning all organization support." 18

The questioned par. 1 of Sec. 8 (a) likewise can easily pass the balancing-of-
interest test. 19

In the apt words of the Solicitor General:

It is to be noted that right now the nation is on the threshold of rewriting its
Constitution in a hopeful endeavor to find a solution to the grave economic, social
and political problems besetting the country. Instead of directly proposing the
amendments Congress has chosen to call a Constitutional Convention which
shall have the task of fashioning a document that shall embody the aspirations
and ideals of the people. Because what is to be amended is the fundamental law
of the land, it is indispensable that the Constitutional Convention be composed of
delegates truly representative of the people's will. Public welfare demands that
the delegates should speak for the entire nation, and their voices be not those of
a particular segment of the citizenry, or of a particular class or group of people,
be they religious, political, civic or professional in character. Senator Pelaez,
Chairman of the Senate Committee on Codes and Constitutional Amendments,
eloquently stated that "the function of a constitution is not to represent anyone in
interest or set of interests, not to favor one group at the expense or disadvantage
of the candidates � but to encompass all the interests that exist within our
society and to blend them into one harmonious and balanced whole. For the
constitutional system means, not the predominance of interests, but the
harmonious balancing thereof."

So that the purpose for calling the Constitutional Convention will not be deflated
or frustrated, it is necessary that the delegatee thereto be independent, beholden
to no one but to God, country and conscience.

xxx xxx xxx

The evil therefore, which the law seeks to prevent lies in the election of delegates
who, because they have been chosen with the aid and resources of
organizations, cannot be expected to be sufficiently representative of the people.
Such delegates could very well be the spokesmen of narrow political, religious or
economic interest and not of the great majority of the people. 20

We likewise concur with the Solicitor General that the equal protection of the
laws is not unduly subverted in par. I of Sec. 8(a); because it does not create any
hostile discrimination against any party or group nor does it confer undue favor or
privilege on an individual as heretofore stated. The discrimination applies to all
organizations, whether political parties or social, civic, religious, or professional
associations. The ban is germane to the objectives of the law, which are to avert
the debasement of the electoral process, and to attain real equality of chances
among individual candidates and thereby make real the guarantee of equal
protection of the laws.

The political parties and the other organized groups have built-in advantages
because of their machinery and other facilities, which, the individual candidate
who is without any organization support, does not have. The fact that the other
civic of religious organizations cannot have a campaign machinery as efficient as
that of a political party, does not vary the situation; because it still has that much
built-in advantage as against the individual candidate without similar support.
Moreover, these civic religious and professional organization may band together
to support common candidates, who advocates the reforms that these
organizations champion and believe are imperative. This is admitted by petitioner
Gonzales thru the letter of Senator Ganzon dated August 17, 1970 attached to
his petition as Annex "D", wherein the Senator stated that his own "Timawa"
group had agreed with the Liberal Party in Iloilo to support petitioner Gonzales
and two others as their candidates for the convention, which organized support is
nullified by the questioned ban, Senator Ganzon stressed that "without the group
moving and working in joint collective effort" they cannot "exercise effective
control and supervision over our
leaders � the Women's League, the area commanders, etc."; but with their
joining with the LP's they "could have presented a solid front with very bright
chances of capturing all seats."

The civic associations other than political parties cannot with reason insist that
they should be exempted from the ban; because then by such exemption they
would be free to utilize the facilities of the campaign machineries which they are
denying to the political parties. Whenever all organization engages in a political
activity, as in this campaign for election of delegates to the Constitutional
Convention, to that extent it partakes of the nature of a political organization.
This, despite the fact that the Constitution and by laws of such civic, religious, or
professional associations usually prohibit the association from engaging in
partisan political activity or supporting any candidate for an elective office.
Hence, they must likewise respect the ban.

The freedom of association also implies the liberty not to associate or join with
others or join any existing organization. A person may run independently on his
own merits without need of catering to a political party or any other association
for support. And he, as much as the candidate whose candidacy does not evoke
sympathy from any political party or organized group, must be afforded equal
chances. As emphasized by Senators Tolentino and Salonga, this ban is to
assure equal chances to a candidate with talent and imbued with patriotism as
well as nobility of purpose, so that the country can utilize their services if elected.

Impressed as We are by the eloquent and masterly exposition of Senator Tañada


for the invalidation of par. 1 of Sec. 8(a) of R.A. No. 6132, demonstrating once
again his deep concern for the preservation of our civil liberties enshrined in the
Bill of Rights, We are not persuaded to entertain the belief that the challenged
ban transcends the limits of constitutional invasion of such cherished immunities.

WHEREFORE, the prayers in both petitions are hereby denied and R.A. No.
6132 including Secs. 2, 4, 5, and 8(a), paragraph 1, thereof, cannot be declared
unconstitutional. Without costs.

Reyes, J.B.L., Dizon and Castro, JJ., concur.

Makalintal, J., concurs in the result.

Teehankee, J., is on leave.

Separate Opinions

FERNANDO, J., concurring and dissenting:


The opinion of Justice Makasiar speaking for the Court, comprehensive in scope,
persuasive in character and lucid in expression, has much to recommend it. On
the whole, I concur. I find difficulty, however, in accepting the conclusion that
there is no basis for the challenge hurled against the validity of this provision: "No
candidate for delegate to the Convention shall represent or allow himself to be
represented as being a candidate of any political party or any other organization,
and no political party, political group, political committee, civic, religious,
professional, or other organization or organized group of whatever nature shall
intervene in the nomination of any such candidate or in the filing of his certificate
of candidacy or give aid or support directly or indirectly, material or otherwise,
favorable to or against his campaign for election: ..." 1 It is with regret then that I
dissent from that portion of the decision.

1. I find it difficult to reconcile the decision reached insofar as the aforesaid ban
on political parties and civic, professional and other organizations is concerned
with the explicit provision that the freedom to form associations or societies for
purposes not contrary to law shall not be abridged. 2 The right of an individual to
join others of a like persuasion to pursue common objectives and to engage in
activities is embraced within if not actually encouraged by the regime of liberty
ordained by the Constitution. This particular freedom has an indigenous cast, its
origin being traceable to the Malolos Constitution.

In the United States, in the absence of an explicit provision of such character, it is


the view of Justice Douglas, in a 1963 article, that it is primarily the First
Amendment of her Constitution, which safeguards freedom of speech and of the
press, of assembly and of petition "that provides [associations] with the protection
they need if they are to remain viable and continue to contribute to our Free
Society." 3 Such is indeed the case, for five years earlier the American Supreme
Court had already declared: "It is beyond debate that freedom to engage in
association for the advancement of beliefs and ideas is an inseparable aspect of
the "liberty" [embraced in] freedom of speech." 4

Not long after, in 1965, Justice Douglas as; spokesman for the American
Supreme Court could elaborate further on the scope of the right of association as
including "the right to express one's attitudes or philosophies by membership in a
group or by affiliation with it or by other lawful means, Association in that context
is a form of expression of opinion; and while it is not extremely included in the
First Amendment its existence is necessary in making the express guarantees
fully meaningful." 5 Thus is further vitalized freedom of expression which, for
Justice Laurel, is at once the instrument" and the guarantee and the bright
consummate flower of all liberty" 6 and, for Justice Cardozo, "the matrix, the
indispensable condition of nearly every other form of freedom." 7

2. It is in the light of the above fundamental postulates that I find merit in the plea
of petitioners to annul the challenged provision. There is much to be said for the
point emphatically stressed by Senator Lorenzo M. Tañada, as amicus curiae, to
the effect that there is nothing unlawful in a candidate for delegate to the
Convention representing or allowing himself to be represented as such of any
political party or any other organization as well as of such political party, political
group, political committee, civic, religious, professional or other organization or
organized group intervening in his nomination, in the filing of his certificate of
candidacy, or giving aid or support, directly or indirectly, material or otherwise,
favorable to or against his campaign for election as such delegate. I find the
conclusion inescapabe therefore, that what the constitutional provisions in
question allow, more specifically the right to form associations, is prohibited. The
infirmity of the ban is thus apparent on its face.

There is, to my mind, another avenue of approach that leads to the same
conclusion. The final proviso in the same section of the Act forbids any
construction that would in any wise "impair or abridge the freedom of civic,
political, religious, professional, trade organizations or organized groups of
whatever nature to disseminate information about, or arouse public interest in,
the forthcoming Constitutional Convention, or to advocate constitutional reforms,
programs, policies or proposals for amendment of the present Constitution, and
no prohibition contained herein shall limit or curtail the right of their members, as
long as they act individually, to support or oppose any candidate for delegate to
the Constitutional Convention." 8 It is regrettable that such an explicit recognition
of what cannot be forbidden consistently with the constitutional guarantees of
freedom of expression and freedom of association falls short of according full
respect to what is thus commanded, by the fundamental law, as they are
precluded by the very same Act from giving aid or support precisely to the very
individuals who can carry out whatever constitutional reforms, programs, policies
or proposals for amendment they might advocate. As thus viewed, the conviction
I entertain as to its lack of validity is further strengthened and fortified.

3. It would be a different matter, of course, if there is a clear and present danger


of a substantive evil that would justify a limitation on such cherished freedoms.
Reference has been made to Gonzales v. Commission on Elections. 9 As
repression is permissible only when the danger of substantive evil is present is
explained by Justice Branders thus: ... the evil apprehended is to imminent that it
may befall before there is opportunity for full discussion. If there be time to
expose through discussion the falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is more speech, not enforced
silence. For him the apprehended evil must be "relatively serious." For
"[prohibition] of free speech and assembly is a measure so stringent that it would
be inappropriate as the means for averting a relatively trivial harm to society."
Justice Black would go further. He would require that the substantive evil be
"extremely serious." Only thus may there be a realization of the ideal envisioned
by Cardozo: "There shall be no compromise of the freedom to think one's
thoughts and speak them, except at those extreme borders where thought
merges into action." It received its original formulation from Holmes. Thus: "The
question in every case is whether the words used in such circumstances are of
such a nature as to create a clear and present danger that they will bring about
the substantive evils that Congress has a right to prevent. It is a question of
proximity and degree." " 10 The majority of the Court would find the existence of a
clear and present danger of debasing the electoral process. With due respect, I
find myself unable to share such a view.

The assumption would, appear to be that there is a clear and present danger of a
grave substantive evil of partisanship running riot unless political parties are thus
restrained. There would be a sacrifice then of the national interest involved. The
Convention might not be able to live up to the high hopes entertained for an
improvement of the fundamental law. It would appear though that what prompted
such a ban is to assure that the present majority party would not continue to play
its dominant role in the political life of the nation. The thought is entertained that
otherwise, we will not have a Convention truly responsive to the needs of the
hour and of the future insofar as they may be anticipated.

To my mind, this is to lose sight of the fact that in the national elections of 1946,
1953, 1961 and 1965, the presidency was won by the opposition candidate.
Moreover, in national elections for senators alone, that of 1951, to mention only
one instance, saw a complete sweep of the field by the then minority party. It
would be unjustifiable, so I am led to believe to assume that inevitably the
prevailing dominant political party would continue its ascendancy in the coming
Convention.

Then, too, the result of the plebiscite in the two proposed amendments in 1967
indicate unmistakably that the people can, if so minded, make their wishes
prevail. There is thus no assurance that the mere identification with party labels
would automatically insure the success of a candidacy. Even if it be assumed
that to guard against the evils of party spirit carried to excess, such a ban is
called for, still no such danger is presented by allowing civil, professional or any
other organization or organized group of whatever nature to field its own
candidates or give aid or support, directly or indirectly material or otherwise, to
anyone running for the Convention. From such a source, no such misgivings or
apprehension need arise. Nor it the fear that organizations could hastily be
assembled or put up to camouflage their true colors as satellites of the political
parties be valid. The electorate can see through such schemes and can
emphatically register its reaction. There is, moreover, the further safeguard that
whatever work the Convention may propose is ultimately subject to popular
ratification.

For me then the danger of a substantive evil is neither clear nor present. What
causes me grave concern is that to guard against such undesirable eventuality,
which may not even come to pass, a flagrant disregard of what the Constitution
ordains is minimized. A desirable end cannot be coerced by unconstitutional
means.
4. It is not easy to yield assent to the proposition that on a matter so essentially
political as the amendment or revision of an existing Constitution, political parties
or political groups are to be denied the opportunity of launching the candidacy of
their choice. Well has it been said by Chief Justice Hughes: "The greater the
importance of safeguarding the community from incitements to the overthrow of
our institutions by force and violence, the more imperative is the need to
preserve inviolate the constitutional rights of free speech, free press and free
assembly in order to maintain the opportunity for free political discussion, to the
end that government may be responsive to the will of the people and that
changes, if desired, may be obtained by peaceful means. Therein lies the
security of the Republic, the very foundation of constitutional government." 11 It is
to carry this essential process one step farther to recognize and to implement the
right of every political party or group to select the candidates who, by their
election, could translate into actuality their hopes for the fundamental law that the
times demand. Moreover, is it not in keeping with the rights to intellectual
freedom so sedulously safeguarded by the Constitution to remove all obstacles
to organized civic groups making their influence felt in the task of constitution
framing, the result of which has momentuous implications for the nation? What is
decisive of this aspect of the matter is not the character of the association or
organized group as such but the essentially political activity thus carried out.

This is not to deny the wide latitude as to the choice of means vested in
Congress to attain a desirable goal. Nor can it be successfully argued that the
judiciary should display reluctance in extending sympathy and understanding to
such legislative determination. This is merely to stress that however worthwhile
the objective, the Constitution must still be paid deference. Moreover, it may not
be altogether unrealistic to consider the practical effects of the ban as thus
worded as not lacking in effectivity insofar as civic, religious, professional or other
organizations or organized group is concerned, but not necessarily so in the case
of political party, political group or political committee. There is the commendable
admission by Senator Tolentino, appearing as amicus curiae, that the political
leaders of stature, in their individual capacity, could continue to assert their
influence. It could very well happen, then, in not a few cases, assuming the
strength of political parties, that a candidate thus favored is sure of emerging the
victor. What is thus sought to be accomplished to guard against the evil of party
spirit prevailing could very well be doomed to futility. The high hopes entertained
by the articulate and vocal groups of young people, intellectuals and workers,
may not be realized. The result would be that this unorthodox and novel provision
could assume the character of a tease, an illusion like a munificent bequest in a
pauper's will.

If such an appraisal is not unjustifiably tinged with pessimism, then, to my mind, a


radical approach to a problem possibly tainted with constitutional infirmity cannot
hurdle the judicial test as to its validity. It is one thing to encourage a fresh and
untried solution to a problem of gravity when the probability of its success may be
assumed. It is an entirely different matter to cut down the exercise of what
otherwise are undeniable constitutional rights, when as in this case, the outcome
might belie expectations. Considering the well-settled principle that even though
the governmental process be legitimate and substantial, they cannot be pursued
by means that broadly stifle fundamental personal liberties, if the end can be
narrowly achieved, I am far from being persuaded that to preclude political
parties or other groups or associations from lending aid and support to the
candidates of men in whom they can repose their trust is consistent with the
constitutional rights of freedom of association and freedom of expression. Here,
the danger of overbreadth, so clear and manifest as to be offensive to
constitutional standards, magnified by the probability that the result would be the
failure and not success of the statutory scheme, cautions against the affixing of
the imprimatur of judicial approval to the challenged provision.

5. Necessarily then, from this mode of viewing the matter, it would follow that the
holding of this Court in Gonzales v. Comelec 12 does not compel the conclusion
reached by the majority sustaining the validity of this challenged provision. What
survived the test of constitutional validity in that case, with the Court unanimous
in its opinion, is the prohibition for any political party, political committee or
political group to nominate candidates for any elective public office voted for at
large earlier than 150 days immediately preceding election and for any other
public office earlier than 90 days immediately preceding such election. 13 A
corollary to the above limitation, the provision making it unlawful for any person,
whether or not a voter or candidate, or for any group or association of persons,
whether or not a political party or political committee, to engage in an election
campaign or partisan political activity except during the above periods
successfully hurdled, the constitutional test, although the restrictions as to the
making of speeches, announcements or commentaries or holding interviews for
or against the election of any party or candidate for public office or the publishing
or distributing of campaign literature or materials or the solicitation or undertaking
any campaign or propaganda for or against any candidate or party, directly or
indirectly, survived by the narrow margin of one vote, four members of this Court
unable to discern any constitutional infirmity as against the free speech
guarantee, thus resulting in failing to muster the necessary two-thirds majority for
a declaration of invalidity. Insofar as election campaign or partisan political
activity would limit or restrict the formation, of organizations, associations, clubs,
committees or other groups of persons for the purpose of soliciting votes or
undertaking any campaign or propaganda for or against a party or candidate or,
the giving, soliciting, or receiving a contribution for election campaign purposes,
either directly or indirectly as well as the holding of political conventions,
caucuses, conferences, meetings, rallies, parades or other similar assemblies,
with a similar and in view, only five members of this Court, a minority thereof
voted, for their unconstitutionality. What emerges clearly, then, is that definite
acts short of preventing the political parties from the choice of their candidates
and thereafter working for them in effect were considered by this Court as not
violative of the constitutional freedoms of speech, of press, of assembly and of
association.
The challenged provision in these two petitions, however, goes much farther.
Political parties or any other organization or organized group are precluded from
selecting and supporting candidates for delegates to the Constitutional
Convention. To my mind, this is to enter a forbidden domain, Congress
trespassing on a field hitherto rightfully assumed to be within the sphere of
liberty. Thus, I am unable to conclude that our previous decision in Gonzales v.
Commission on Elections which already was indicative of the cautious and
hesitant judicial approach to lending its approval to what otherwise are invasions
of vital constitutional safeguards to freedoms of belief, of expression, and of
association lends support to the decision reached by the majority insofar as this
challenged provision is concerned.

Hence my inability to subscribe in its entirety to the opinion of the Court. I am


authorized to state that the Chief Justice is in agreement with the views herein
expressed.

Concepcion, C.J., Villamor and Zaldivar, JJ., concur.

BARREDO, J., concurring and dissenting:

Without prejudice to a more extended opinion, I vote, in concurrence with the


majority, to sustain the validity of the provisions of Republic Act 6132 impugned
by petitioners in these cases, except Section 4 and the portion of Section 8(a)
referring to political parties. As regards Section 4, I reiterate my separate opinion
in the cases of Subido and others. (G.R. Nos. L-32436 and L-32439) With
respect to Section 8(a), I hold that the considerations which take the restraint on
the freedoms of association, assembly and speech involved in the ban on
political parties to nominate and support their own candidates, reasonable and
within the limits of the Constitution do not obtain when it comes to civic or non-
political organizations. As I see it, the said ban, insofar as civic or non-political
organizations are concerned, is a deceptive device to preserve the built-in
advantages of political parties while at the same time crippling completely the
other kinds of associations. The only way to accomplish the purported objective
of the law of equalizing the forces that will campaign in behalf of the candidates
to the constitutional convention is to maintain said ban only as against political
parties, for after all, only the activities and manners of operation of these parties
and/or some of their members have made necessary the imposition thereof.
Under the resulting set up embodied in the provision in question, the individual
candidates who have never had any political party connections or very little of it
would be at an obvious disadvantage unless they are allowed to seek and use
the aid of civic organizations. Neither the elaborate provisions of Republic Act
6132 regarding methods of campaign nor its other provisions intended to
minimize the participation of political parties in the electorate processes of voting,
counting of the votes and canvassing of the results can overcome the
advantages of candidates more or less connected with political parties,
particularly the major and established ones, as long as the right to form other
associations and the right of these associations to campaign for their candidates
are denied considering particularly the shortness of the time that is left between
now and election day.

The issues involved in the coming elections are grave and fundamental ones that
are bound to affect the lives, rights and liberties of all the people of this country
most effectively, pervasively and permanently. The only insurance of the people
against political parties which may be inclined towards the Establishment and the
status quo is to organize themselves to gain much needed strength and
effectivity. To deny them this right is to stifle the people's only opportunity for
change.

It is axiomatic that issues, no matter how valid, if not related to particular


candidates in an organized way, similarly as in the use of platforms by political
parties, cannot have any chance of support and final adoption. Both men and
issues are important, but unrelated to each other, each of them alone is
insignificant, and the only way to relate them is by organization. Precisely
because the issues in this election of candidates are of paramount importance
second to none, it is imperative that all of the freedoms enshrined in the
constitution should have the ampliest recognition for those who are minded to
actively battle for them and any attempt to curtail them would endanger the very
purposes for which a new constitutional convention has been conceived.

Consistently with my separate opinion in the case of Gonzales and Cabigao vs.
Comelec, G.R. No. L-27833, April 18, 1969 and for the reasons therein stated, I
maintain that the right of suffrage which is the cornerstone of any democracy like
ours is meaningless when the right to campaign in any election therein is
unreasonably and unnecessarily curtailed, restrained or hampered, as is being
done under the statute in dispute.

It is, of course, understood that this opinion is based on my considered view,


contrary to that of the majority, that as Section 8(a) stands and taking into
account its genesis, the ban against political parties is separable from that
against other associations within the contemplation of Section 21 of the Act
which expressly refers to the separability of the application thereof to any
"persons, groups or circumstances."

I reserve my right to expand this explanation of my vote in the next few days.

# Separate Opinions

FERNANDO, J., concurring and dissenting:


The opinion of Justice Makasiar speaking for the Court, comprehensive in scope,
persuasive in character and lucid in expression, has much to recommend it. On
the whole, I concur. I find difficulty, however, in accepting the conclusion that
there is no basis for the challenge hurled against the validity of this provision: "No
candidate for delegate to the Convention shall represent or allow himself to be
represented as being a candidate of any political party or any other organization,
and no political party, political group, political committee, civic, religious,
professional, or other organization or organized group of whatever nature shall
intervene in the nomination of any such candidate or in the filing of his certificate
of candidacy or give aid or support directly or indirectly, material or otherwise,
favorable to or against his campaign for election: ..." 1 It is with regret then that I
dissent from that portion of the decision.

1. I find it difficult to reconcile the decision reached insofar as the aforesaid ban
on political parties and civic, professional and other organizations is concerned
with the explicit provision that the freedom to form associations or societies for
purposes not contrary to law shall not be abridged. 2 The right of an individual to
join others of a like persuasion to pursue common objectives and to engage in
activities is embraced within if not actually encouraged by the regime of liberty
ordained by the Constitution. This particular freedom has an indigenous cast, its
origin being traceable to the Malolos Constitution.

In the United States, in the absence of an explicit provision of such character, it is


the view of Justice Douglas, in a 1963 article, that it is primarily the First
Amendment of her Constitution, which safeguards freedom of speech and of the
press, of assembly and of petition "that provides [associations] with the protection
they need if they are to remain viable and continue to contribute to our Free
Society." 3 Such is indeed the case, for five years earlier the American Supreme
Court had already declared: "It is beyond debate that freedom to engage in
association for the advancement of beliefs and ideas is an inseparable aspect of
the "liberty" [embraced in] freedom of speech." 4

Not long after, in 1965, Justice Douglas as; spokesman for the American
Supreme Court could elaborate further on the scope of the right of association as
including "the right to express one's attitudes or philosophies by membership in a
group or by affiliation with it or by other lawful means, Association in that context
is a form of expression of opinion; and while it is not extremely included in the
First Amendment its existence is necessary in making the express guarantees
fully meaningful." 5 Thus is further vitalized freedom of expression which, for
Justice Laurel, is at once the instrument" and the guarantee and the bright
consummate flower of all liberty" 6 and, for Justice Cardozo, "the matrix, the
indispensable condition of nearly every other form of freedom." 7

2. It is in the light of the above fundamental postulates that I find merit in the plea
of petitioners to annul the challenged provision. There is much to be said for the
point emphatically stressed by Senator Lorenzo M. Tañada, as amicus curiae, to
the effect that there is nothing unlawful in a candidate for delegate to the
Convention representing or allowing himself to be represented as such of any
political party or any other organization as well as of such political party, political
group, political committee, civic, religious, professional or other organization or
organized group intervening in his nomination, in the filing of his certificate of
candidacy, or giving aid or support, directly or indirectly, material or otherwise,
favorable to or against his campaign for election as such delegate. I find the
conclusion inescapabe therefore, that what the constitutional provisions in
question allow, more specifically the right to form associations, is prohibited. The
infirmity of the ban is thus apparent on its face.

There is, to my mind, another avenue of approach that leads to the same
conclusion. The final proviso in the same section of the Act forbids any
construction that would in any wise "impair or abridge the freedom of civic,
political, religious, professional, trade organizations or organized groups of
whatever nature to disseminate information about, or arouse public interest in,
the forthcoming Constitutional Convention, or to advocate constitutional reforms,
programs, policies or proposals for amendment of the present Constitution, and
no prohibition contained herein shall limit or curtail the right of their members, as
long as they act individually, to support or oppose any candidate for delegate to
the Constitutional Convention." 8 It is regrettable that such an explicit recognition
of what cannot be forbidden consistently with the constitutional guarantees of
freedom of expression and freedom of association falls short of according full
respect to what is thus commanded, by the fundamental law, as they are
precluded by the very same Act from giving aid or support precisely to the very
individuals who can carry out whatever constitutional reforms, programs, policies
or proposals for amendment they might advocate. As thus viewed, the conviction
I entertain as to its lack of validity is further strengthened and fortified.

3. It would be a different matter, of course, if there is a clear and present danger


of a substantive evil that would justify a limitation on such cherished freedoms.
Reference has been made to Gonzales v. Commission on Elections. 9 As
repression is permissible only when the danger of substantive evil is present is
explained by Justice Branders thus: ... the evil apprehended is to imminent that it
may befall before there is opportunity for full discussion. If there be time to
expose through discussion the falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is more speech, not enforced
silence. For him the apprehended evil must be "relatively serious." For
"[prohibition] of free speech and assembly is a measure so stringent that it would
be inappropriate as the means for averting a relatively trivial harm to society."
Justice Black would go further. He would require that the substantive evil be
"extremely serious." Only thus may there be a realization of the ideal envisioned
by Cardozo: "There shall be no compromise of the freedom to think one's
thoughts and speak them, except at those extreme borders where thought
merges into action." It received its original formulation from Holmes. Thus: "The
question in every case is whether the words used in such circumstances are of
such a nature as to create a clear and present danger that they will bring about
the substantive evils that Congress has a right to prevent. It is a question of
proximity and degree." " 10 The majority of the Court would find the existence of a
clear and present danger of debasing the electoral process. With due respect, I
find myself unable to share such a view.

The assumption would, appear to be that there is a clear and present danger of a
grave substantive evil of partisanship running riot unless political parties are thus
restrained. There would be a sacrifice then of the national interest involved. The
Convention might not be able to live up to the high hopes entertained for an
improvement of the fundamental law. It would appear though that what prompted
such a ban is to assure that the present majority party would not continue to play
its dominant role in the political life of the nation. The thought is entertained that
otherwise, we will not have a Convention truly responsive to the needs of the
hour and of the future insofar as they may be anticipated.

To my mind, this is to lose sight of the fact that in the national elections of 1946,
1953, 1961 and 1965, the presidency was won by the opposition candidate.
Moreover, in national elections for senators alone, that of 1951, to mention only
one instance, saw a complete sweep of the field by the then minority party. It
would be unjustifiable, so I am led to believe to assume that inevitably the
prevailing dominant political party would continue its ascendancy in the coming
Convention.

Then, too, the result of the plebiscite in the two proposed amendments in 1967
indicate unmistakably that the people can, if so minded, make their wishes
prevail. There is thus no assurance that the mere identification with party labels
would automatically insure the success of a candidacy. Even if it be assumed
that to guard against the evils of party spirit carried to excess, such a ban is
called for, still no such danger is presented by allowing civil, professional or any
other organization or organized group of whatever nature to field its own
candidates or give aid or support, directly or indirectly material or otherwise, to
anyone running for the Convention. From such a source, no such misgivings or
apprehension need arise. Nor it the fear that organizations could hastily be
assembled or put up to camouflage their true colors as satellites of the political
parties be valid. The electorate can see through such schemes and can
emphatically register its reaction. There is, moreover, the further safeguard that
whatever work the Convention may propose is ultimately subject to popular
ratification.

For me then the danger of a substantive evil is neither clear nor present. What
causes me grave concern is that to guard against such undesirable eventuality,
which may not even come to pass, a flagrant disregard of what the Constitution
ordains is minimized. A desirable end cannot be coerced by unconstitutional
means.
4. It is not easy to yield assent to the proposition that on a matter so essentially
political as the amendment or revision of an existing Constitution, political parties
or political groups are to be denied the opportunity of launching the candidacy of
their choice. Well has it been said by Chief Justice Hughes: "The greater the
importance of safeguarding the community from incitements to the overthrow of
our institutions by force and violence, the more imperative is the need to
preserve inviolate the constitutional rights of free speech, free press and free
assembly in order to maintain the opportunity for free political discussion, to the
end that government may be responsive to the will of the people and that
changes, if desired, may be obtained by peaceful means. Therein lies the
security of the Republic, the very foundation of constitutional government." 11 It is
to carry this essential process one step farther to recognize and to implement the
right of every political party or group to select the candidates who, by their
election, could translate into actuality their hopes for the fundamental law that the
times demand. Moreover, is it not in keeping with the rights to intellectual
freedom so sedulously safeguarded by the Constitution to remove all obstacles
to organized civic groups making their influence felt in the task of constitution
framing, the result of which has momentuous implications for the nation? What is
decisive of this aspect of the matter is not the character of the association or
organized group as such but the essentially political activity thus carried out.

This is not to deny the wide latitude as to the choice of means vested in
Congress to attain a desirable goal. Nor can it be successfully argued that the
judiciary should display reluctance in extending sympathy and understanding to
such legislative determination. This is merely to stress that however worthwhile
the objective, the Constitution must still be paid deference. Moreover, it may not
be altogether unrealistic to consider the practical effects of the ban as thus
worded as not lacking in effectivity insofar as civic, religious, professional or other
organizations or organized group is concerned, but not necessarily so in the case
of political party, political group or political committee. There is the commendable
admission by Senator Tolentino, appearing as amicus curiae, that the political
leaders of stature, in their individual capacity, could continue to assert their
influence. It could very well happen, then, in not a few cases, assuming the
strength of political parties, that a candidate thus favored is sure of emerging the
victor. What is thus sought to be accomplished to guard against the evil of party
spirit prevailing could very well be doomed to futility. The high hopes entertained
by the articulate and vocal groups of young people, intellectuals and workers,
may not be realized. The result would be that this unorthodox and novel provision
could assume the character of a tease, an illusion like a munificent bequest in a
pauper's will.

If such an appraisal is not unjustifiably tinged with pessimism, then, to my mind, a


radical approach to a problem possibly tainted with constitutional infirmity cannot
hurdle the judicial test as to its validity. It is one thing to encourage a fresh and
untried solution to a problem of gravity when the probability of its success may be
assumed. It is an entirely different matter to cut down the exercise of what
otherwise are undeniable constitutional rights, when as in this case, the outcome
might belie expectations. Considering the well-settled principle that even though
the governmental process be legitimate and substantial, they cannot be pursued
by means that broadly stifle fundamental personal liberties, if the end can be
narrowly achieved, I am far from being persuaded that to preclude political
parties or other groups or associations from lending aid and support to the
candidates of men in whom they can repose their trust is consistent with the
constitutional rights of freedom of association and freedom of expression. Here,
the danger of overbreadth, so clear and manifest as to be offensive to
constitutional standards, magnified by the probability that the result would be the
failure and not success of the statutory scheme, cautions against the affixing of
the imprimatur of judicial approval to the challenged provision.

5. Necessarily then, from this mode of viewing the matter, it would follow that the
holding of this Court in Gonzales v. Comelec 12 does not compel the conclusion
reached by the majority sustaining the validity of this challenged provision. What
survived the test of constitutional validity in that case, with the Court unanimous
in its opinion, is the prohibition for any political party, political committee or
political group to nominate candidates for any elective public office voted for at
large earlier than 150 days immediately preceding election and for any other
public office earlier than 90 days immediately preceding such election. 13 A
corollary to the above limitation, the provision making it unlawful for any person,
whether or not a voter or candidate, or for any group or association of persons,
whether or not a political party or political committee, to engage in an election
campaign or partisan political activity except during the above periods
successfully hurdled, the constitutional test, although the restrictions as to the
making of speeches, announcements or commentaries or holding interviews for
or against the election of any party or candidate for public office or the publishing
or distributing of campaign literature or materials or the solicitation or undertaking
any campaign or propaganda for or against any candidate or party, directly or
indirectly, survived by the narrow margin of one vote, four members of this Court
unable to discern any constitutional infirmity as against the free speech
guarantee, thus resulting in failing to muster the necessary two-thirds majority for
a declaration of invalidity. Insofar as election campaign or partisan political
activity would limit or restrict the formation, of organizations, associations, clubs,
committees or other groups of persons for the purpose of soliciting votes or
undertaking any campaign or propaganda for or against a party or candidate or,
the giving, soliciting, or receiving a contribution for election campaign purposes,
either directly or indirectly as well as the holding of political conventions,
caucuses, conferences, meetings, rallies, parades or other similar assemblies,
with a similar and in view, only five members of this Court, a minority thereof
voted, for their unconstitutionality. What emerges clearly, then, is that definite
acts short of preventing the political parties from the choice of their candidates
and thereafter working for them in effect were considered by this Court as not
violative of the constitutional freedoms of speech, of press, of assembly and of
association.
The challenged provision in these two petitions, however, goes much farther.
Political parties or any other organization or organized group are precluded from
selecting and supporting candidates for delegates to the Constitutional
Convention. To my mind, this is to enter a forbidden domain, Congress
trespassing on a field hitherto rightfully assumed to be within the sphere of
liberty. Thus, I am unable to conclude that our previous decision in Gonzales v.
Commission on Elections which already was indicative of the cautious and
hesitant judicial approach to lending its approval to what otherwise are invasions
of vital constitutional safeguards to freedoms of belief, of expression, and of
association lends support to the decision reached by the majority insofar as this
challenged provision is concerned.

Hence my inability to subscribe in its entirety to the opinion of the Court. I am


authorized to state that the Chief Justice is in agreement with the views herein
expressed.

Concepcion, C.J., Villamor and Zaldivar, JJ., concur.

BARREDO, J., concurring and dissenting:

Without prejudice to a more extended opinion, I vote, in concurrence with the


majority, to sustain the validity of the provisions of Republic Act 6132 impugned
by petitioners in these cases, except Section 4 and the portion of Section 8(a)
referring to political parties. As regards Section 4, I reiterate my separate opinion
in the cases of Subido and others. (G.R. Nos. L-32436 and L-32439) With
respect to Section 8(a), I hold that the considerations which take the restraint on
the freedoms of association, assembly and speech involved in the ban on
political parties to nominate and support their own candidates, reasonable and
within the limits of the Constitution do not obtain when it comes to civic or non-
political organizations. As I see it, the said ban, insofar as civic or non-political
organizations are concerned, is a deceptive device to preserve the built-in
advantages of political parties while at the same time crippling completely the
other kinds of associations. The only way to accomplish the purported objective
of the law of equalizing the forces that will campaign in behalf of the candidates
to the constitutional convention is to maintain said ban only as against political
parties, for after all, only the activities and manners of operation of these parties
and/or some of their members have made necessary the imposition thereof.
Under the resulting set up embodied in the provision in question, the individual
candidates who have never had any political party connections or very little of it
would be at an obvious disadvantage unless they are allowed to seek and use
the aid of civic organizations. Neither the elaborate provisions of Republic Act
6132 regarding methods of campaign nor its other provisions intended to
minimize the participation of political parties in the electorate processes of voting,
counting of the votes and canvassing of the results can overcome the
advantages of candidates more or less connected with political parties,
particularly the major and established ones, as long as the right to form other
associations and the right of these associations to campaign for their candidates
are denied considering particularly the shortness of the time that is left between
now and election day.

The issues involved in the coming elections are grave and fundamental ones that
are bound to affect the lives, rights and liberties of all the people of this country
most effectively, pervasively and permanently. The only insurance of the people
against political parties which may be inclined towards the Establishment and the
status quo is to organize themselves to gain much needed strength and
effectivity. To deny them this right is to stifle the people's only opportunity for
change.

It is axiomatic that issues, no matter how valid, if not related to particular


candidates in an organized way, similarly as in the use of platforms by political
parties, cannot have any chance of support and final adoption. Both men and
issues are important, but unrelated to each other, each of them alone is
insignificant, and the only way to relate them is by organization. Precisely
because the issues in this election of candidates are of paramount importance
second to none, it is imperative that all of the freedoms enshrined in the
constitution should have the ampliest recognition for those who are minded to
actively battle for them and any attempt to curtail them would endanger the very
purposes for which a new constitutional convention has been conceived.

Consistently with my separate opinion in the case of Gonzales and Cabigao vs.
Comelec, G.R. No. L-27833, April 18, 1969 and for the reasons therein stated, I
maintain that the right of suffrage which is the cornerstone of any democracy like
ours is meaningless when the right to campaign in any election therein is
unreasonably and unnecessarily curtailed, restrained or hampered, as is being
done under the statute in dispute.

It is, of course, understood that this opinion is based on my considered view,


contrary to that of the majority, that as Section 8(a) stands and taking into
account its genesis, the ban against political parties is separable from that
against other associations within the contemplation of Section 21 of the Act
which expressly refers to the separability of the application thereof to any
"persons, groups or circumstances."

I reserve my right to expand this explanation of my vote in the next few days.

# Footnotes
1 Sec. 1 of Res. No. 4.

2 Sec. 3, Res. No. 4.

3 Sec. 22, R.A. No. 6132.


4 Abelardo Subido vs. Comelec, in re validity of Sec. 4 and Sec. 8(a) par. 2, R.A. 6132, G.R. No. L-32436,
and In the matter of the petition for declaratory relief re validity and constitutionality of Sec. 4, R.A. 6132,
Hon. Guardson Lood, Judge, CFI, Pasig, Rizal et al., petitioners, G.R. No. L-32439, Sept. 9, 1970.

5 Sec. 5, Art. VI, Constitution.

6 Macias et al. vs. Comelec, G. R. No. L-18684, Sept. 14, 1961..

7 People vs. Vera, 65 Phil. 56; People vs. Solon, G.R. No. L-14864, Nov. 23, 1960.

8 See Gonzales vs. Comelec, L-27833, April 18, 1969; Vol. 27, SCRA, p. 835, 858 et seq.; Justice Douglas
in Elfbrandt v. Russel, 384 US 11, 18-19, 1966.

9 27 SCRA, pp. 860-861.

10 27 SCRA, p. 865.

11 27 SCRA, p. 869.

12 27 SCRA, pp. 864-865, 868.

13 27 SCRA, pp. 869-870.

14 27 SCRA, p. 873.

15 27 SCRA, p. 872.

16 See his sponsorship speech of July 20, 1970.

17 84 Phil. 847, 852.

18 See his sponsorship speech on July 20, 1970.

19 See Justice Castro's separate opinion in Gonzales vs. Comelec, supra, 27 SCRA, pp. 898-899 citing
American Communications Association vs. Douds, 339 U.S. 383, 94 L. Ed., 925, 9437.

20 Pp. 4-5, 12, Answer in L-32432.

FERNANDO, J., concurring and dissenting:

1 Sec. 8(a), Republic Act No. 6132 (1970).

2 The Constitution provides: "The right to form associations or societies for purposes not contrary to law
shall not be abridged." Art. III, Sec. 1, par. 6.

3 Douglas, The Right of Association, 63 Col. Law Rev. 1363 (1963).

4 NAACP v. Alabama ex rel. Patterson, 357 US 449, 460 (1958) per Harlan, J. Cf. Bates v. Little Rock, 361
US 516 (1960); Shelton v. Tucker, 364 US 479. (1960); Louisiana ex rel. Gremillon v. NAACP, 366 US. 293
(1961); Communist Party v. Subversive Activities Control Board, 367 US 1 (1961); Scales v. United States,
367 US 203 (1961); NAACP v. Button, 371 US 415 (1963); Gibson v. Florida Legislative Investigation,
Comm., 372 US 539 (1963); Brotherhood v. Virginia ex rel. State Bar 377 US 1 (1964); NAACP v. Alabama,
377 US 288 (1964).

5 Griswold v. Connecticut, 381 US 479, 483 (1965). In Elfbrandt v. Russel, 384 US 11, 18 (1966) he spoke
of this right as a "cherished freedom." Cf. Keyishan v. Board of Regents, 385 US 589 (1967).

6 Planas v. Gil, 67 Phil. 62 (1939), Justice Laurel quoting Wendell Philipps.

7 Palko v. Connecticut, 302 US 319, 323 (1937).


8 Section 8(a), Republic Act No. 6132 (1970).

9 L-27833, April 18, 1969, 27 SCRA 835.

10 Ibid., pp. 859-860.

11 De Jonge v. Oregon, 299 US 353, 365 (1937).

12 L-27833, April 18, 1969, 27 SCRA -835.

13 Sec. 50(a) of Republic Act 4880 (1967).